Free Motion to Strike - District Court of Arizona - Arizona

1 Elizabeth A. Petersen (#018377)
Robert G. Vaught (#020717)
2 SNELL & WILMER L.L.1¤.
One Arizona Center
3 400 E. Van Buren
Phoenix, AZ 85004-2202
4 Telephone: (602) 382-6378
[email protected]
5 [email protected] _
Attorneys for Defendant DriveTime
6 Automotive Group
7
IN THE UNITED STATES DISTRICT COURT
g .
FOR THE DISTRICT OF ARIZONA
9
1() Debra Jilka, No. CV-03-1369-PHX-MHM
1 1 Plaintiff, ~
is MoT1oN TO STRIKE
E I $3 12 v. AFFIDAVIT OF (CHRIS
= RoMANo
E 5 §`E 13 DriveTime Automotive Group aka Ugly Duckling
$8 7 B Corporation,
% Eggs 14
:1 EE Defendant.
<¤ 15
16 Defendant DriveTime Automotive Group aka Ugly Duckling Corporation
17 ("DriveTime"), through its undersigned counsel, hereby asks the Court to strike the
18 Affidavit of Chiis Romano (hereinafter, "Romano Affidavit") Plaintiff submitted with her
V 19 Response to DriveTime's Motion for Summary Judgment. The Romano Affidavit should
20 be stricken for several reasons. ·
2] Any testimony from Mr. Romano is inadmissible because Plaintiff never
22 disclosed him as a witness. Pursuant to this Court's Scheduling Order, Plaintiff had until
23 June 27, 2005, to complete discovery and disclose her witnesses. As Plaintiff did not
24 disclose Mr. Romano or the allegations in his Affidavit until she filed her Response to
25 DriveTime's Motion for Summary Judgment, the Affidavit should be stricken in its
26 entirety. See e. g., Russell v. Harms, 397 F.3d 458, 467 (7th Cir. 2005) ("[A] party’s
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V 1 failure to comply with summary judgment evidentiary requirements is traditionally
2 remedied ...by excluding the non-conforming submission. .. and then determining
3 whether the [remaining facts] entitle the party to judgment as a matter of law.) (citation
4 omitted); see als01Essence, Inc. v. Federal Heights, 285 F.3d 1272, 1288-89 (10th Cir.
I 5 2002) ("[t]he only ground upon which the district court could have denied the motion was
6 timeliness."); Ziliak v. Astra Zeneca LP, 324 F.3d 518, 520 (7"1 Cir. 2003); Graham v.
7 American Cyanamid C0., 350 F.3d 496, 509 (6th Cir. 2003). When an untimely affidavit
3 contains evidence that has been available to the submitting party from the initiation of
9 litigation, the affidavit should be struck. See Russell, 397 F.3d at 467. The Court should
e "1() also strike the Romano Affidavit because it prejudices DriveTime's ability to examine
H 11 Mr. Romano about his allegations. See ia'. ("Because it was filed after the close of
li i wig; 12 discovery. . .defendants had no opportunity to depose the [affiant] on its contents.")
§ 13 In addition, the Romano Affidavit is not based entirely on Mr. Romano's personal
é I 14 knowledge, and therefore does not meet the threshold requirements for an affidavit
fg 15 submitted in opposition to a motion for summary judgment. Fed. R. Civ. P. 56(e) requires
16 that any affidavit submitted in opposition to a motion for summary judgment "shall set
17 forth such facts as would be admissible in evidence, and shall show affirmatively that the
18 affiant is competent to testify to the matters stated therein . . . an adverse party . . . must
19 set forth specific facts showing that there is genuine issue for trial." lt is well settled that
20 only admissible evidence may be considered by the trial court in ruling on a motion for
21 summary judgment. See, e. g., Beyene v. Colemen Sec. Servs., Inc., 854 F.2d 1179, 1181
22 (9th Cir. 1988).
23 Several of the allegations contained in the Romano Affidavit purport to explain the
24 conduct and thoughts of individuals other than Chris Romano. For example, Mr. Romano
25 suggests: "VVhile I was employed under Ms. Leatherman, she NEVER wrote a
26 disciplinary document that did not have a signature from the employee," and that "Ms.
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‘ 1 Leatherman did have her 'favo1ites' that she would allow more flexibility in their
2 attendance and performance." Romano Affidavit at W 20, 2l. Mr. Romano should not be
3 permitted to speculate as to the conduct or opinions of Ms. Leatherman, or any other
4 witness, particularly because he has no direct knowledge to support such allegations. See
5 Fed. R. Evid. 602. ‘
6 For the foregoing reasons, DriveTime respectfully asks the Court to strike the
7 Affidavit of Chris Romano, submitted with Plaintiffs Response to DriveTime's Motion
8 for Summary Judgment.
9 RESPECTFULLY SUBMITTED this 26th day of September, 2005.
10 SNELL & WILMER r..L.1>.
- M 11
cu Eg
E ( m;§G 12 By: s/Elizabeth A. Peterson
DH @$5% Elizabeth A. Petersen
§ 2 L. .. .
0,5 SQ Z3 13 Robert G. Vaught
_, One Arizona Center
T5 1 14 400 E. van Buren
(E Phoenix, AZ 85004-2202
g 15 Attorneys for Defendant DriveTime V
“ 16 ORIGINAL of the foregoing
filed electronically with the Clerk ·
17 of the U.S. District Court
18 this 26th day of September, 2005.
I hereby certify that on September 26, 2005, _
19 I served the attached document by mail,
on the following, who is not a registered
20 participant of the CM/ECF System:
21 Debra J ilkla
1738 w 6t Ave.
22 Mesa, AZ 85202
480-969-7263
23 Pro Per `
24
l
2 5 s/Mary Hastings
26785.0l49\VAUGI·l”TR\PHX\l731087.l .
26
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